Thursday, April 30, 2015


My thoughts about the justice system in general, in an ideal sense:

A) The victim wants the offender punished. They want them to feel and understand the hurt that they have caused.
B) Society wants to be protected.

For A) you want the offender to feel a sense of guilt, a pain that makes them regret committing the offence.

Punishments of yore

B) Is more complicated as you have a number of factors.

  1. Deterrence - preventing the committing of an offence in the first place due to fear of punishment.
  2. Removal of opportunity - A custodial or capital sentence removes the offender from society thus preventing them from committing further crimes
  3. Restitution - Paying for/repairing the damage caused (not always possible). This is very specific and will be ignored in this discussion.
  4. Reform - Changing the character of the offender and removing the desire to commit further crimes and turning them into a productive rather than a destructive member of society.

Added into the mix is C. Issue of human rights. From a societal, not offender's, perspective, it is "How do our actions as a society reflect and impact on our society." This includes issues like wrong convictions and punishment of the innocent, the impact of punishment on society - what kind of society are you building through vigilante justice or public stonings for example?

I know that if I was the victim of crime I would be very angry and want to cause a lot of pain towards the offender. However, civilised laws are made by societies and not individuals, which is why they are usually about B and C and not A.

Unfortunately, getting the balance of 1,2,3,4 and C seems very difficult. The Scandinavian examples place a strong emphasis on reform with lower rates of recidivism than many other countries , but sometimes fail at removing the opportunity to commit further crimes. In the US and Australia it often seems like criminals, especially petty ones, come out of gaol worse than when they go in and are as such incarcerated for longer.

The death penalty offers the ultimate prevention of further offences without the need for reform, but can fail badly at human rights (especially for the innocent).

And as for deterrence, it seems to work best for rational people who are least likely to commit an offence anyway.

The biggest problem with getting things right is that not all people are equal when it comes to criminal behaviour, due to the nature of their brains and the environment that shaped them. Psychopaths have been shown to be largely incapable for understanding (or caring about) punishment, so deterrence simply doesn't work. Same with those driven to irrationality by taking drugs. Does an angry drunk think about gaol when they lash out? The compulsion to commit further crimes may, in certain cases, be too great to reform. This seems to be the case for many mass murderers and sex offenders.

But it's not true of every criminal. And the brain does change as one ages. For instance, adolescent male brains struggle to comprehend risk, which is why we see so many young people overconfidently driving too fast, jumping into big waves etc etc etc. Ten years later they will probably be a different person.

Ideally society could identify potential criminals as children and work on their behaviour to steer them away from crime. It's a lot of work to do so.

My personal belief is that if somebody is a strong potential threat to society - segregate them from society until they are no longer a threat. If they have reformed and are no longer a threat then release them. Put effort into reforming them into productive members of society. From a resources perspective, once they are productive you aren't paying for them any more.

And the death penalty is wrong because the justice system can be wrong.

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